A modern copyright regime requires regular attention: James Moore for Inside Policy

Effective intellectual property laws are essential for everyday Canadians, for investors, for the digital economy, for artists, for our academic communities, and more broadly, for Canada’s place in the world, writes James Moore who led the modernization of Canada’s Copyright Act.

By James Moore, June 14, 2016

Few people pursue political office to wrestle with the issue of intellectual property law and all of its complications and incendiary debates. Certainly that was true of me when I first sought office, and it was still the case when I was later appointed to the federal cabinet in 2008. I am quite sure this is equally true of members of the current Parliament and Prime Minister Trudeau’s cabinet, given that the words “copyright” and “intellectual property” don’t appear even once in the 2015 Liberal or Conservative election platforms, nor in the government’s Throne Speech, nor in any one of the mandate letters of the current cabinet.

While this isn’t a big surprise given that the topic seems dry, at least superficially, the reality is that there are few issues that are as central to Canada’s economic and cultural place in the world as ensuring that our intellectual property laws remain up to date and effective. Investment decisions, creative directions, academic collaborations, Canada’s trade agenda, our much hashed and rehashed rhetoric on “innovation,” and our global reputation all hinge on Canada’s intellectual property laws.

So while few, if any, current members of Parliament ran for office on a platform of supporting and revising intellectual property law, in the coming months they will do themselves and the country a great service by educating themselves on the topic and its associated debates.

Back in 2012 the Copyright Modernization Act was passed into law, after over 20 years of endless debate, delay, and failure. Since its passage, the reforms have served Canada very well.

When the legislation was first proposed, it faced earnest criticisms and sparked a healthy debate about intellectual property law in the digital age and about how to accommodate and balance competing interests. In the end, the legislation passed, laws were reformed, and since then Canada has been broadly recognized as having an intellectual property framework that is contemporary with technological change, balances competing interests, and serves consumers, creators, and investors well.

Among the features of the Copyright Modernization Act is a mandatory 5-year review of the regime. This was put in place to force all future governments to assess and adjust our intellectual property laws as necessary to ensure that Canada does not fall behind in protecting Canadians in a globally competitive world of ideas-based economic development. Absent this mandatory 5-year review – as we witnessed in the 20 years prior to 2012’s Copyright Modernization Act – stakeholder interests, tricky zero-sum policy decisions, and the political self-interest of governments subsume the greater public interest of copyright modernization. The first mandated review of the Copyright Act is set to take place next year and the federal government, and all Canadians, need to be ready for the discussion.

Prior to the review of the Copyright Act, I have a few observations to share based on my experiences in dealing with this file:

Keep an eye on the world

All countries that aspire to attract investment, have a robust digital strategy, truly welcome innovation, and foster a creative culture are continually assessing and updating their intellectual property laws. In fact, the Australian government’s Productivity Commission just released a massive white paper entitled Intellectual Property Arrangements that touches on virtually every topic related to IP law. The commission’s goal is to stir debate and make recommendations to the government for reform so as to “ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.”

In the United States, the House of Representatives Committee on the Judiciary is wrapping up broad-based hearings on copyright reform and will be making amendments in the coming weeks. In Taiwan, sweeping changes are coming to their Copyright Act after a great many consultations over the past couple of years by Taiwan’s Intellectual Property Office. In total, 149 articles of their Act are expected to be amended, covering everything from fair dealing, digital convergence, enabling provisions, and more. Meanwhile, in Europe, the European Commission’s push for a “Digital Single Market” (DSM) continues. This ambitious plan to transform the 28 European Union member countries into a single, borderless digital entity with standardized online regulations and business laws continues. They are tackling online piracy, safe harbour provisions, continental contractual parity recognition and remuneration regimes for artists, and more.

For Canada to compete in the world, we must pay close attention to these debates and their outcomes. Canada must be vigilant in recognizing the competitive advantages and disadvantages of our legal framework.

Build on success

Canada’s current intellectual property laws are balanced, recognize our international commitments, are carefully thought out, and are rooted in sound principles that make sense for Canadians. Any changes we make must build on those solid foundations. Our laws are technologically neutral, which was difficult to achieve legislatively, but makes absolute sense in practice. With ever-changing technologies, governments should concede to, and in fact encourage, greater innovation, while avoiding technology-specific laws that stymie growth and innovation. Unlike many other jurisdictions, our laws have broad fair-dealing exemptions, which, for example, enable educators to more broadly use materials in their classrooms and provide a legal basis for such use. Those exemptions serve Canada well. Rules in Canada are clear for internet service providers and their liability when it comes to fighting online piracy. Consumers have clarity in law when it comes to the use of material and the consumption of content on the digital devices of their choice. And, we have empowered the creators of content – software, apps, games, music, films – to protect their ideas, and their investments, from those who would steal from them.

In short, Canada’s copyright regime works well. Any reforms ought to be cautiously entertained and recognize the relative success of Canada’s status quo.

Communicate and educate

As mentioned above, few members of Parliament sought office with copyright reform in mind; fewer still grasp the conflicting issues inherent in the debate. Before this year is over, the government would be well served to make clear its intent to engage on the issue, outline what aspects of the current law it believes need to be examined, and offer members of Parliament a group departmental briefing on the current law. Very quickly, debate on this topic can become irrational and be dominated by vested interests and by those with ideological biases. The surest way for Parliament to keep control of the tone of the debate is for it to respond with substance, to communicate clearly with Canadians on the intended policy direction, and educate Members of Parliament on an issue few are familiar with.

Effective intellectual property laws are essential for everyday Canadians, for investors, for the digital economy, for artists, for our academic communities, and more broadly, for Canada’s place in the world. At a time when our manufacturing capacity is sliding, our productivity is slumping, our commodity-based industries are suffering, and our exports are struggling to get to global markets, we need to ensure our ideas-based economy is thriving. While we do have laws that work well now, we are competing against other jurisdictions that are using their intellectual property regimes as comparative advantages. The government needs to debate copyright laws responsibly here at home, keep a keen eye on global developments, and always ensure that our intellectual property laws serve Canada and all its potential.

James Moore, P.C., M.A., served as Minister of Industry in Stephen Harper’s government and is currently Senior Business Advisor at Dentons Canada LLP.

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